WONG PUI SHAM v. HKSAR

FACC No. 4 of 2000

IN THE COURT OF FINAL APPEAL OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

FINAL APPEAL NO. 4 OF 2000 (CRIMINAL)

(ON APPEAL FROM CACC NO. 272 OF 1999)

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J U D G M E N T

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Chief Justice Li :

1. I agree with the judgment of Mr Justice Silke NPJ.

Mr Justice Bokhary PJ :

2. I agree with the judgment of Mr Justice Silke NPJ.

Mr Justice Chan PJ :

3. I agree with the judgment of Mr Justice Silke NPJ.

Mr Justice Silke NPJ :

4. Wong Pui Sham - "the appellant" - was convicted after trial, at which he gave no evidence, in the District Court on three charges, two contrary to the Prevention of Bribery Ordinance, Cap.201 - "the Ordinance". The third was that of doing an act tending and intended to pervert the course of public justice contrary to Common Law. He was sentenced to terms of imprisonment totalling four years.

5. He appealed against those convictions to the Court of Appeal which allowed his appeal in part, quashing the convictions on two of the charges. Those were the second charge of being a public servant soliciting an advantage contrary to s.4(2)a of the Ordinance and the Common Law offence. The Court upheld the conviction on the first charge, that of being a government officer accepting an advantage contrary to s.3 of the Ordinance and his sentence of six months imprisonment stood.

6. By leave granted by this Court - on the basis that it was reasonably arguable that substantial and grave injustice had been done - he now appeals against his conviction on the first charge. He seeks to place himself within the test applicable to the provisions of s.32(2) of the Hong Kong Court of Final Appeal Ordinance, Cap.484 - referring to "substantial and grave injustice". This provision, in the words of Bokhary PJ in So Yiu Fung v.HKSAR (1999) HKCFAR 539 at page 541J - 542A :

"... exists as a residual safeguard to cater for those rare and exceptional cases in which there is a real danger of something so seriously wrong that justice demands an enquiry by way of a final criminal appeal despite the absence of any real controversy on any point of law of great and general importance."

7. Bokhary PJ went on to set out the test to be applied for such an appeal to succeed as this (at p.543 F-G) :

"... it must be shown that there has been to the appellant's disadvantage a departure from accepted norms which departure is so serious as to constitute a substantial and grave injustice"

8. Mr John Griffiths SC for the appellant makes two main submissions in his printed case.

9. First : Siu's evidence was the only incriminating evidence against the appellant. In setting aside the convictions on the second and third charges the Court of Appeal, as they felt unable to rely on the evidence of Siu, failed to consider whether Siu's evidence could safely be relied upon on the first charge.

10. Second : that the Court of Appeal fell into error in that it failed properly to analyse the new position, or to consider the validity of the trial judges findings in light of the new situation.

11. This Court is not a trier of fact. As Bokhary PJ said in So Yiu Fung v. HKSAR "Reviewing convictions to see if they are safe and satisfactory is entrusted to the intermediate appellate court. If the matter proceeds further to this Court our task does not involve repeating that exercise". (p.543 E-F)

12. A jurisprudential stance emphasised by Mr Andrew Bruce SC in his submissions on behalf of the respondent. It is, he says, incumbent on this Court to proceed on the basis that the Court of Appeal has done its constitutional duty. The findings of fact themselves are the province of the trial court. It is not, therefore, for this Court to review the facts but simply to consider whether the decision of the Court of Appeal was properly come to - was not "a departure from accepted norms". The Court of Appeal, he says, did not so depart.

13. To see if the appellant has passed the So Yiu Fung test, in the light of the submissions made on his behalf and those made by the respondent, it is necessary to consider, in short compass, the background to all the charges.

The Background

14. The appellant was a Superintendent of the Customs and Excise Department - "the Department". In March 1998 he was acting Senior Superintendent and head of the Prosecution, Intelligence and Investigation Bureau of the Department.

15. On 24 April 1998 a letter was delivered to a letter box in the Department which is designated for the receipt of information from the public. The letter claimed that a firm named as Golden Science Technology Ltd was manufacturing pirate compact discs and videos - "the discs" - and that the firm was protected by customs officers who permitted it to do this. It named a Peter Siu Sik Sum as being involved. Siu was a director, shareholder and manager of the company. Siu and the appellant were friends. Siu was the main witness in respect of all the charges at the appellant's trial.

16. It was a standing order of the Department that complaints such as this were kept confidential and were passed to the head of the Prosecution, Intelligence and Investigation Bureau to be sent on to the Independent Commission Against Corruption without any independent action being taken by the Department.

17. It came to the hands of the appellant at about 5.30 pm that day.

18. That same evening Siu was giving a dinner party the guests at which included the appellant, other customs officers, members of the police force and airline officers.

19. It was the prosecution case that the appellant had tipped off Siu about the letter who then told his boss - a man name Tsoi - who in turn ordered the shutdown of the production of pirated discs and directed their removal from the factory. That was the background to the third charge - the common law offence.

20. It was the start of the case for the prosecution that the appellant, on 20 March 1998, had asked for and been given a loan of $50,000 by Siu. It was further their case that this had been referred to at the time of the tip off. The loan resulted in the first charge and the reference to it, involving a request for the repayment of it to be deferred, led to the second charge - soliciting an advantage.

21. Raids were carried out by the ICAC at the premises of the company on 26 April and pirated copies of the discs were found. Siu was arrested on 27 April 1998.

22. Siu gave his evidence under a conditional immunity. He was an accomplice. He was a dishonest businessman. He told a quite different story on arrest from that contained in his later statements to the ICAC and from his evidence at trial. He had previous convictions for dishonesty in 1975. All of which matters were noted by the trial judge and were referred to by the Court of Appeal.

23. Siu had known, though in his evidence he attempted to distance himself from it, of the illegal production of pirated compact discs and videos.

24. At trial it was established that factories of Golden Science Technology Ltd had shut down production and cleared out the premises on previous occasions. Siu denied any tip off had caused this reaction. He said that, on three occasions, he had, by pretending that he had received tip off, caused close downs his motive being to stop the illegal part of the company's business.

25. This was a matter which caused the trial judge "grave concern" for he was of the view that :

" ... the claim to making false tip off was one that I found very hard to believe. I was not sure that it was a lie but I was not sure that it was the truth.

This matter obviously damaged his credibility".

26. The business itself was a substantial one involving machinery costing over $300m dollars and from which Siu drew remuneration of some $1.5 million per year - and the production of illegal discs was a lucrative part of it.

27. During the period, some three days, that Siu remained in custody he had been interviewed at length by ICAC officers.

28. Members of the ICAC gave evidence at trial and of it the judge said :

"What occurred between Mr Siu and the ICAC officers was obviously of great significance in the trial."

And again, having rejected a defence suggestion of an ICAC conspiracy in which they told Siu of the letter and put him up to framing the appellant - and a considerable portion of the Reasons for Verdict involved the reasons for a favourable assessment of the ICAC witnesses -the judge said :

"Of course, this provided enormous support for Mr Siu's evidence as it pointed inexorably to the defendant being the source of his knowledge of the contents of the letter."

29. Notes made by the ICAC officers were accepted in evidence. The officers concerned said that these notes were made for their own use in preparation for the interviews - described as "debriefing"- with Siu.

30. At the appeal Mr Griffiths invited the Court of Appeal to re-examine them and submitted that they "all have the hallmarks of records of what Peter Siu told the ICAC during his debriefing and could not be what the officers claimed them to be".

31. Further, it was submitted that their contents gave rise to the possibility that Siu had given the name of another customs officer as the source of the leak. It was his point that the evidence of the ICAC officers could not be relied upon.

The Approach of the Court of Appeal

32. Having themselves examined the three sets of notes the Court of Appeal agreed with Mr Griffiths's submission and were of the view that they were not aide-memoires for a debriefing. The Court concluded :

"In any event, we are left in considerable doubt as to the truth behind the entries in the notes made by the ICAC officers. We cannot, in such circumstances, give support to the Judge's finding that the ICAC officers could be relied upon to have told the whole truth".

33. They went on to note that there were crucial differences as between the evidence of surveillance officers - they were keeping watch on the restaurant where the dinner of 24 April was being held for the purpose of a general investigation then being carried out - and that of Siu as to the timing of the arrivals of persons to that dinner. Further, the evidence of two employees of the company - who were in receipt of immunity - as to the time when they first started packing the discs on the 24 April differed - on one side Mr Fu Koon Kwan (PW10) and on the other Miss Lau Lai Yin (PW11). If Mr Fu's timing of 8pm to 8.30pm was correct the tip off could have come from the appellant. If Miss Lau's timing of 7pm to 8pm was correct it was unlikely that it did. This because Siu's evidence was to the effect that, after he received the tip off, he telephoned to Tsoi who was in Fanling asking him to come into Hong Kong to speak with him. This Tsoi did, arriving near the restaurant at about 8pm. It was only after a conversation that then took place between them that Tsoi gave the order to pack the illegal goods and clean them out of the factory.

34. Of this discrepancy the Court said :

"In our view, although the Judge was entitled to believe any witness and reject the evidence of other witnesses, in the present case it appears that he had preferred the evidence of PW10 which fitted in with the timing of the events according to the evidence of Peter Siu, and rejected that of PW11, without considering whether the inconsistency between their evidence might have been because the tip off could equally have come from ... (another customs officer)."

35. That customs officer's name had appeared in the discredited ICAC notes under the nickname "BB".

36. It was the defence suggestion at trial that Siu, by implicating the appellant, was attempting, in his witness statement which he made in the hope of receiving an immunity from prosecution for a pirated discs offence and thus avoiding a lengthy term of imprisonment, to protect other person or persons. In effect Siu had to give some name and he eventually chose that of a senior officer to give credence to his story.

37. The Court of Appeal felt that the weaknesses in the prosecution case were sufficient to raise doubts, which caused them anxiety and concluded that there was a lurking doubt as far as the second and third charges were concerned.

38. So : the Court of Appeal considered the trial judge to have found support for the case against the appellant in evidence which did not provide such support. While the concept of the Cooper (R. v. Cooper [1969] 1 QB 267) "lurking doubt" did enter the considerations of the Court of Appeal, their findings were in conformity with the provisions of s.83(1)(a) of the Criminal Procedure Ordinance, Cap.221 - the verdicts "cannot be regarded as safe and satisfactory" and it is those words which govern the position: Kwong Kin Hing v. R. [1997] HKLRD 15. Lord Steyn there, accepting a concession by counsel for that appellant that : "... the 'lurking doubt' test is simply a different and vivid way of expressing exactly the same idea" - unsafe and unsatisfactory - cited the test of Lord Kilbrandon set out in Stafford v. Director of Public Prosecutions [1974] AC 878 at page 912 "Have I a reasonable doubt, or perhaps even a lurking doubt, that this conviction may be unsafe and unsatisfactory".

The conviction on the first charge

39. But what of the first charge and how, if at all, was it affected by the quashing of the other two convictions bearing in mind that it also was based on the evidence of Siu and that the appellant himself gave no evidence?

40. The evidence on it was, shortly, that on 20 March 1998 Siu, met the appellant as, Siu said, the result of an earlier telephone call from the appellant, in the car park below the headquarters of the Department in Rumsey Street. They got into Siu's car, driven by Lai Chi Shing (PW9) who was an employee of Siu. The car then went to a branch of The Hong Kong and Shanghai Bank at Central Market. Siu went into the bank and bank documents showed that, at 1pm, he withdrew $50,000 in cash.

41. The driver, who was tendered for cross-examination, supported the evidence of the journey. He did not recall where he drove the car to after the incident. He did not see anything being handed to the appellant, who had remained in the back seat of this seven seater vehicle, by Siu on his return from the bank.

42. Siu said that, when the car stopped at Rumsey Street, he got out and met the appellant who then asked him for a loan. The appellant was leaving on the next day for a world duty tour and needed money, his salary not yet having been paid. When he returned from the bank he handed the appellant the $50,000. All this took place on the day on which his beloved sister died, a fact made known by him to the appellant at the car park. The appellant knew her as she was the wife of a former customs officer who had introduced the appellant to Siu in the first place.

The submissions to this Court

43. It is Mr Griffiths's main submission that the Court of Appeal, having felt unable to rely on the evidence of a person of the nature of Siu in relation to the second and third charges, should have gone on to apply an analysis to the first charge bearing in mind their findings on the other charges and, finding themselves unable to rely on Siu in respect of the other charges, should have extended that finding to the first charge. In failing to do so it felt into error.

44. The Court of Appeal was of the view that the evidence of Siu on the first charge :

"... was clear and there was nothing to contradict his evidence which the Judge accepted. It was a separate incident, not dependent on the evidence of the ICAC officers, the notes, the surveillance and PW10 and it took place more than a month earlier."

45. That passage raises the real issue before us. While the "loan" events took place on 20 March and the "tip off" and the soliciting of an advantage on 24 April, and in that sense they were separate incidents, it was, if the prosecution case were to stand up, the basis for all else that had happened for it was the existence of the loan which led to the tip off as an inducement for its repayment to be deferred. Siu's evidence being crucial, did the Court of Appeal err in the view they expressed and in taking the course they did?

46. The general approach of the trial judge is illustrated by two passages from his lengthy and detailed Reasons for Verdict. The first :

"The issue in the case was whether Mr Siu was telling the truth about the loan and the tip off. Its resolution depended upon his credibility." (Emphasis supplied)

47. The second, when considering what form a judge's directions to a jury might take,

"Part of that help would be in the form of advice to keep an eye on the essential question, which was can one be sure that Mr Siu told the truth about the defendant in respect of the loan and the tip off. It would also urge that the whole of the evidence be taken into account in deciding that question and it would identify any other evidence which supported Mr Siu in the relevant regard". (Emphasis supplied)

48. Following that advice he sought that supporting evidence and found it in the evidence of the ICAC officers and made what he termed his "central finding" :

"... I judged that Mr Siu was telling me the truth about the defendant. The false tip off point did not raise a reasonable doubt in my mind about this. The support from my findings concerning the ICAC was crucial. It was as if that evidence splinted a weak bone and allowed the questionable limb to bear the weight of certainty."

49. The Court of Appeal removed that splint.

50. The Court of Appeal does not appear to have taken the same global approach to the charges as did the trial judge. Had he found himself without the "enormous support" he thought himself to have would he have found Siu credible in respect of all the charges? This is not a question the Court of Appeal seems to have asked itself.

51. Further, it is the norm for a Court of Appeal, where it forms a doubt as to the reliability of a crucial prosecution witness's credibility and sets aside some of the convictions based almost entirely on the evidence of that witness, to consider whether such doubt also impacts on any remaining conviction which is also dependent on the credibility of that witness.

52. For myself I do not think, with great respect, that that course was taken by the Court of Appeal.

53. That being so there is such "a departure from accepted norms" that I would allow this appeal and set aside the conviction and sentence on the first charge with costs of the trial, the appeal to the Court of Appeal and the appeal to this Court. Mr Bruce did not seek to resist this form of costs order should the appeal be successful.

Lord Hoffmann NPJ :

54. I agree.

Chief Justice Li :

55. The Court unanimously allows this appeal and sets aside the conviction and sentence on the first charge with costs of the trial, the appeal to the Court of Appeal and the appeal to this Court.